Ask Attorney Bernie: Jury selection helps to reduce bias

By Bernard J. Rabik, For The Times

Friday

Jan 4, 2019 at 6:00 AM

Question: I try not to miss any episode of “Bull,” a show in which the main character is a consultant for attorneys on jury selection. How does Bull or any jury consultant help a litigation attorney to know how the jury is going to react to what he or she has planned before the opening statement is given?

Answer: The right to a jury trial is guaranteed by the United States and Pennsylvania Constitutions. The effectiveness of the jury system depends upon citizens’ willingness to serve, as well as jurors’ ability to be fair and impartial while deciding the facts and applying the law.

Kinds of cases heard by jurors

Jurors hear either criminal or civil cases.

In criminal cases, a district attorney acting on behalf of the citizens of Pennsylvania prosecutes a case against an individual or an entity accused of a crime. The district attorney is also referred to as the prosecutor. The person or entity accused of the crime is referred to as the defendant.

In civil cases, an individual, entity or governmental agency brings suit against another individual, entity or governmental agency. The party initiating the lawsuit is referred to as the plaintiff, and the party defending the suit is the defendant.

What is voir dire?

Voir dire (to speak the truth) is a French term that refers to the preliminary examination of an individual’s qualifications to be a juror. Voir dire is sometimes conducted by the judge and sometimes by the lawyers. The purpose is to find out whether any views held by the potential juror hinder his or her ability to act impartially. Therefore, it is very important for the litigation attorneys to have these questions answered honestly.

Common Pleas judges must observe voir dire questioning.

In May 2018, a three-judge panel in the Pennsylvania Superior Court unanimously ruled Common Pleas Judges throughout the Commonwealth should observe all voir dire questioning, otherwise subjecting themselves to reversible error. In its opinion the Superior Court emphasized that “Our High Court place(s) great significance on the trial judge’s personal observation of the prospective jurors.” Judge Deborah A. Kunselman (former judge of the Beaver County Court of Common Pleas) poignantly expressed that the trial judge “acquired none of the wisdom or insight that he could have from noting a juror’s furtive glance, a tremor of voice, a delayed reply, a change in posture, or myriads of other body language.”

Scientific jury selection

If you are an attorney, you hope that you end up with jurors with biases that help your client’s case, for every juror is biased in some way.

Some attorneys are taking a more proactive tactic: They are hiring outside consultants who create a plan for selecting an ideal jury, and determining how to sway those jurors toward their desired verdict. The process is called “scientific jury selection.” Some consultants run mock trials to see whether jurors’ characteristics predict verdicts.

The first trial consultants were social scientists who wanted to help defend Vietnam protesters in a 1972 case. Since then, consultants’ presence in the legal system has grown considerably. As of the early 2000s, trial consulting was a $400-million industry. Like most consultants, they are paid handsomely, as much as seven figures per case. They are indispensable in high-profile suits: Dr. Phil rose to fame when his consulting company represented Oprah in a lawsuit worth $12 million. Consultants are not required to disclose their participation.

Scientific jury selection aims to reduce bias.

The entire reason that the courts allow a voir dire process in the first place is to reduce bias and promote an environment where the facts win out. It is the jury’s function to decide the facts of the matter without bias or prejudice to any party in the case. The law does not permit jurors to be governed by sympathy, prejudice, bias or public opinion.

Even if consultants succeed at identifying jurors who are biased against their side, attorneys may not be able to strike them. The U.S. Supreme Court has ruled that jurors cannot be struck on the basis of their race or gender. There’s a fairly easy way around this, though — historically, attorneys circumvent the rule by using neutral but heavily coded justifications. For example, it has been reported that a prosecutor in a federal district court dismissed a juror of color who he presumed to be Hindu. He argued that this was not race-based, but rather that “Hindus tend to have feelings a good bit different from us” and that he preferred an “American juror.”

Race and gender can be correlated with other characteristics, like native language or beliefs, which are accepted justifications for strikes. Ultimately, it comes down to the motives of attorneys and consultants themselves. The information could be used to eliminate bias or disguise it. Either way, scientific jury selection is here to stay.

Conclusion

Understanding how jurors tend to think, how they use various visuals and forms of technology, and interpreting how their individual attitudes, demographics and learning styles will surface in a deliberating jury can help litigation attorneys to know ahead of time the best way to present their evidence to obtain a favorable outcome.

In sum, knowing how jurors really think will help the real litigation attorney to deliver his or her message more effectively and win.